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The UN Convention on the Rights of Persons with Disabilities - A Commentary edited by Bantekas, Ilias; Stein, Michael Ashley; Anastasiou, Dimitris

Art.21 Freedom of Expression and Opinion, and Access to Information

Eliza Varney

From: The UN Convention on the Rights of Persons with Disabilities: A Commentary

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

Subject(s):
Access to information — Freedom of expression — Disability — Jurisdiction

(p. 582) Article 21  Freedom of Expression and Opinion, and Access to Information

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:

  1. a.  Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;

  2. b.  Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

  3. c.  Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;

  4. d.  Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;

  5. e.  Recognizing and promoting the use of sign languages.

1.  Introduction

Effective access to information is instrumental for enabling participation in society1 not only as passive consumers but also as active citizens.2 Access to information (including information transmitted via media such as newspapers, radio, television, computers, mobile phones) could be seen as a precondition for exercise of the right to freedom (p. 583) of expression and opinion.3 Advances in information and communication technologies (ICTs) should benefit everybody, and products and services should be designed with accessibility in mind.4 Unfortunately, persons with disabilities face significant barriers in accessing ICTs and these barriers create a ‘digital divide’ between those with and those without access to information.5 The importance of challenging these barriers cannot be overstated. Equality of access to information ensures not only that persons with disabilities do not miss out on the opportunities offered by technological advances, but also that society does not miss out on the wide range of skills that persons with disabilities have to offer.6 This chapter examines how effective is the Convention on the Rights of Persons with Disabilities (CRPD)7 in promoting and protecting the equal right of persons with disabilities to freedom of expression and opinion and access to information, focusing on article 21 CRPD. The discussion draws links between this provision and article 19 of the International Covenant on Civil and Political Rights (ICCPR)8 and stresses the importance of the CRPD in applying the right to freedom of expression and opinion and access to information to the specific circumstances of persons with disabilities.9 Links are drawn also between article 21 and other provisions of the CRPD, particularly article 9 on accessibility. The discussion concludes with a reflection on the opportunities and challenges associated with the implementation of article 21 CRPD by states parties to the Convention.

2.  Background and Travaux Préparatoires

The adoption of the CRPD by the UN General Assembly in 2006, tailored specifically towards protecting the human rights of persons with disabilities,10 was necessary, given the general focus of universal human rights instruments such as the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).11 Although article 19 ICCPR sought to protect the right to ‘hold opinions without interference’ and the right to freedom of expression (including ‘freedom to seek, receive and impart information and ideas of all kinds’), this provision was underused by persons with disabilities.12 The prohibited grounds for differential treatment under article 2(1) ICCPR (p. 584) did not make express reference to ‘disability’, which was covered under the provision for ‘other status’.13 Article 21 CRPD clarifies how the right to freedom of expression and opinion and access to information applies to the specific circumstances of persons with disabilities14 and the obligations of states parties to promote and protect the equal enjoyment of this right by persons with disabilities.15 The adoption of this provision was intended not to create a new right, but to consolidate the existing right promoted by article 19 ICCPR.16 However, in this process, the right to freedom of expression and opinion and access to information has undergone a transformation, resulting in a strengthened formulation of this right.17

Before analysing article 21 CRPD in more detail, it is important to examine some of the proposals that could have strengthened this provision, but were omitted from the final text. The Second Session of the Ad Hoc Committee (which was entrusted with considering proposals for an international convention on the protection and promotion of the rights of persons with disabilities)18 considered a draft text requiring states parties to ‘guarantee’ the right of persons with disabilities to information.19 A number of proposed provisions were also more explicit on what was required of states parties in complying with their obligations under article 21 CRPD. For example, the European Disability Forum suggested that article 21(a) could require public authorities explicitly to make their websites accessible to persons with disabilities.20 The final text of article 21(a) CRPD was, however, drafted in general terms, referring to ‘information intended for the general public’, but without explicitly mentioning websites. Drafting the provision in such general terms is understandable, as any attempt for more specificity may be undermined by rapid technological developments. Yet, the provision could have benefited from an explicit reference to accessible websites (eg ‘providing information intended for the general public, including information available through the Internet’), as this could have strengthened the message that accessibility requirements should apply to all information intended for the general public, provided in all formats and through various platforms.

The use of general terms was also adopted in article 21(b) CRPD, which requires states parties to ‘accept and facilitate’ the use of, inter alia, alternative communications in official interactions. However, the proposals of the Working Group (established by the Ad Hoc Committee to prepare the draft text of the Convention)21 went further, as they also required states parties to ‘undertake and promote the research, development and production of new technologies’, including ICTs and assistive technologies ‘suitable for persons with disabilities’.22 This proposal was not included in the final text of article 21, although (p. 585) aspects of it are comprised in the general obligations of states parties under article 4(g), which calls on states parties to ‘undertake or promote research and development’ of new technologies, including ICTs and assistive technologies and to ‘promote’ the availability of these technologies.23 The Working Group proposal also required states parties to promote ‘other appropriate forms of assistance and support’ to ensure access to information, calling on the Ad Hoc Committee to consider expanding this requirement ‘to cover the provision and training of live assistance and intermediaries, such as Braille and caption transcribers, note-takers, sign language, and tactile communication interpreters, and readers’.24 These proposals, although welcomed by the World Blind Union, the World Federation of the Deaf,25 and the International Disability Caucus,26 were not included in the final text of article 21 CRPD.

The negotiation process for article 21(c) CRPD (which requires states parties to ‘urge private entities that provide services to the general public’ to make these accessible) also involved proposals that could have provided a stronger level of protection for the interests of persons with disabilities. At the Third Session of the Ad Hoc Committee, some states parties (including Yemen and Jordan) proposed the adoption of mandatory language to ‘oblige’ or ‘require’ private entities to make their services accessible.27 Unfortunately, the final text of article 21(c) CRPD was limited to merely ‘urging’ private providers to make their services accessible.28 In the Third Session of the Ad Hoc Committee, national human rights institutions also proposed the inclusion of an additional text that would take into account the regulatory role of governments, requiring states parties to review regulatory provisions in the ICT sector and to take advantage of the accessibility standards developed by standard setting bodies. However, this additional text was not included in the final version of article 21(c) CRPD. The Third Session of the Ad Hoc Committee also witnessed the intervention from the Ontario Human Rights Commission and the European Disability Forum, that stressed the importance of mandatory accessibility requirements in public procurement.29 Once again, these provisions were not included in article 21(c) CRPD. Recommendations for mandatory language requiring ‘mass media service providers to make their services accessible to persons with disabilities’ and to ‘ensure that the design of Web pages is accessible by use of universal standards’ were also made, unsuccessfully, with regards to article 21(d).30 This provision was ultimately casted in non-mandatory terms, ‘encouraging’ states parties to provide accessible services.

Proposals for article 21(e) CRPD (which calls on states parties to ‘recognise and promote the use of sign languages’) also included reference to sign language as ‘the natural language of deaf people’ in accessing information and communication.31 This latter reference was not comprised in the original text of article 21(e) CRPD. At the Seventh Session of the Ad Hoc Committee, the International Disability Caucus also proposed a (p. 586) new paragraph ‘recognising Braille as the official script for blind persons’.32 This proposal was not included in article 21 CRPD, based on arguments that whilst ‘sign language is a distinct language’ Braille is ‘a script or a means of communicating a language and not a separate language’.33 The absence of these provisions from the final text of article 21 indicates a missed opportunity for providing a stronger level of protection for persons with disability in exercising their equal right to freedom and expression and opinion and access to information.

3.  Paragraph 1 (Chapeau)

Article 21 CRPD clarifies the obligations of states parties in promoting and protecting the equal enjoyment of the right to freedom and expression and opinion and access to information by persons with disabilities.34 This right is crucial for enabling ‘the full development of the person’ and its importance has been previously stressed in relation to article 19 ICCPR.35 Yet, whilst article 19 ICCPR adopted a negative formulation of this right (eg the right to hold opinions without interference),36 article 21 CRPD transforms this into a positive obligation on states parties, which are required to ‘take all appropriate measures’ to ensure the equal enjoyment of this right by persons with disabilities. This positive obligation is crucial in tackling the accessibility barriers encountered by persons with disabilities in accessing and imparting information.37 The CRPD recognizes the connection between the exercise of the right to freedom of expression and opinion and access to information and the development of an accessible infrastructure to facilitate the exercise of this right.38 It departs from the artificial distinction between civil and political rights (in the ICCPR, framed predominantly in negative terms to prevent state interference), and economic, social, and cultural rights (in the ICESCR, reliant mainly on positive formulations calling on state action),39 reaffirms the ‘indivisibility’ of all human rights and fundamental freedoms40 and creates hybrid rights.41

The call on states parties to provide accessibility is a key part of the ‘duty to respect, protect and fulfil equality rights’42 and reflects a substantive approach to equality. Whilst formal equality seeks to ensure that people are not treated unfavourably because of a specific characteristic and adopts a reactive approach in providing people with the right to sue of discriminated,43 substantive equality relies on a proactive approach. It seeks to ensure the social inclusion of under-represented groups by challenging discriminatory practices and promoting respect for difference.44 In the context of implementing article 21 CRPD, a substantive approach calls, inter alia, for proactive measures to dismantle the structural barriers faced by persons with disabilities when accessing information (p. 587) (including information available via print, audio-visual media, the Internet or mobile phone devices) and when exercising their right to freedom of expression and opinion. Whilst recognizing that such measures have resource implications, the social approach to equality seeks to highlight the wider social costs of inaccessible information45 and the negative impact this may have on the exercise of other rights,46 including the right of access to justice,47 independent living and inclusion in the community,48 education,49 health,50 work and employment,51 participation in the political and public life52 and participation in the cultural life, recreation, leisure, and sport.53 In promoting respect for difference, the substantive vision of equality also calls for facilitating access to information for all persons with disabilities, including persons with sensory (visual and/or hearing), cognitive and dexterity disabilities. This vision of equality also includes the recognition that social change can be achieved only with the involvement of all stakeholders in society, including persons with disabilities and disabled people’s user led organizations.54

Article 21 CRPD requires states parties to ensure that persons with disabilities can exercise their equal right to ‘seek, receive and impart information and ideas’ through ‘all forms of communication of their choice’.55 The Convention relies on a broad concept of ‘communication’ defined in article 2 to include ‘languages, display of text, Braille, tactile communication, large print, accessible multimedia … written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible [ICT]’. Article 2 also defines ‘language’ in non-exhaustive terms to include ‘spoken and signed languages and other forms of non-spoken languages’. As highlighted by the International Disability Alliance (IDA) CRPD Forum, this Convention is the first international treaty to recognize Braille as ‘the script for blind and deaf-blind persons … equal to other scripts in the world’ and to recognize sign languages as ‘languages … equal to spoken languages’.56 Furthermore, the broad definitions of ‘language’ and ‘communication’ encompassed in article 2 reflect a commitment to protecting the rights of all persons with disabilities, including persons with sensory, mobility, and cognitive disabilities.

The CRPD marks a paradigm shift in the perception of persons with disabilities from objects of care to subjects of rights and reaffirms the interests of persons with disabilities in terms of human rights.57 The provision of accessible information plays a key role (p. 588) in empowering people to exercise their right to equal enjoyment of legal capacity in all aspects of life, protected under article 12 CRPD.58 This provision, which reaffirms the right to persons with disabilities to equal recognition as persons before the law,59 refers explicitly to, inter alia, the equal right of persons with disabilities to control their financial affairs and access financial credit, including bank loans and mortgages.60 It also recognizes that some persons with disabilities may require support in exercising legal capacity and calls on states parties to take ‘appropriate measures’ to provide such support,61 but includes no further details about the type of assistance that should be provided. The link between such forms of support and the need to provide information in accessible formats and facilitate alternative means of communication is, however, made by the CRPD Committee in its General Comment No 1 (to article 12 CRPD).62 Whilst recognizing that the concept of ‘support’ could encompass a wide range of provisions, the Committee confirms that it may comprise a requirement on public and private bodies to provide information in accessible formats and facilitate interaction through alternative means of communication.63 This may interpreted to include, inter alia, assistance in communicating with service providers,64 including through the provision of sign language interpretation, information in Braille or easy-to-read formats,65 or the acceptance of accompanying support persons when this is preferred by the persons with disabilities.66 The CRPD Committee stresses that when providing such support, public and private bodies must always respect ‘the individual autonomy and capacity of persons with disabilities to make decisions’.67 Furthermore, any need for support ‘must not be used as justification for limiting other fundamental rights’, including the right to vote.68 Without accessible information, communication, and services, persons with disabilities encounter barriers in exercising the right to equal enjoyment of legal capacity in all aspects of life,69 including participation in society as citizens.

An effective protection of the equal rights of persons with disabilities to freedom of expression and opinion and access to information is crucial for facilitating the participation of persons with disabilities as citizens in civil society.70 As Drake notes, the exercise of citizenship rights is reliant on having the opportunity to participate in ‘the decisions that create the contours of a society’ and barriers to such participation lead to social (p. 589) exclusion.71 Consequently, the implementation of article 21 CRPD must be based on a framework of principles that reflect citizenship values, including equality, participation, inclusion, autonomy, and dignity.72 Persons with disabilities must be perceived as citizens with full entitlements in society rather than as disempowered victims in need of protection.73

The specific obligations on states parties under article 21 CRPD must be read in light of article 1, which states that the purpose of the Convention is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’. Article 21 must also be read in light of the CRPD general principles (which include ‘respect for inherent dignity, individual autonomy’,74 ‘full and effective participation and inclusion in society’,75 and ‘accessibility’)76 and the general obligations on states parties ‘to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities’.77 The recognition of universal dignity can play a very important role in tackling the barriers faced by persons with disabilities in exercising their human rights, including the right to freedom of expression and opinion and access to information. Hanish comments that persons with disabilities often encounter ‘misrecognition’, as other people’s misconceptions are ‘mirrored back to them’, resulting in a ‘distorted’ image of themselves.78 Hanish calls for a change from misrecognition to recognition, including the ‘recognition of universal dignity’.79 The subsequent step must be a positive recognition of difference and the promotion of respect for human diversity.80 Finally, as Hanish notes, such recognition must be given force in the form of rights.81 The CRPD provides a benchmark for achieving these objectives, including through the acknowledgement of universal dignity,82 the promotion of respect for difference83 and the objective of ensuring the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.84 In the context of the right to freedom of expression and opinion and access to information, this includes an acknowledgement that all persons with disabilities (including sensory, cognitive, and dexterity disabilities) are entitled to full and equal enjoyment of these rights and that positive measures must be put in place in order to facilitate the exercise of these rights. It also includes an understanding of personal autonomy not as the ability to be separate from others but as the ability to interact with others, as equal access to social spaces enables individuals to engage in debate with others and shape their own views about the world.85

Article 21 must also be read in light of the general provisions of accessibility under article 9, to ‘take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information (p. 590) and communications, including information and communications technologies and systems’. The link between articles 9 and 21 CRPD is discussed in more detail below. It is important to stress, however, the significance of perceiving equality of access to information as a citizenship right,86 of focusing on enabling participation in society, on tackling the information barriers that led to involuntary exclusion from participation87 and on safeguarding autonomy and independent living as key components of universal dignity.88

4.  Subparagraph (a)

States parties are required to take all appropriate measures to ensure that persons with disabilities can exercise the equal right to freedom and expression and opinion and access to information, including by ensuring that information intended for the general public is provided in ‘accessible formats and technologies’.89 These specific obligations complement the general provisions on accessibility under article 9 CRPD. The provision of information intended for the general public in accessible formats and technologies is crucial in facilitating the involvement of the public in, inter alia, the social, cultural, political, and economic life.90 As noted by the CRPD Committee in its 2014 General Comment No 2 (to article 9 CRPD), accessibility is a precondition for independent living and for full and effective participation in society.91 Yet, as noted by the World Health Organization and the Work Bank in the ‘World Report on Disability’, people often encounter inaccessible information and the legislative frameworks in many countries do not go sufficiently far in safeguarding the rights of persons with disabilities to have access to information.92

Accessibility barriers to information intended for the general public include, inter alia, inaccessible government websites.93 Lazar and Jaeger are correct to express concerns about the implications of these barriers, as the increased reliance on the on-line environment for a wide range of activities (such as the submission of tax returns, participation in government consultations, application for government jobs) risks ‘multiplying’ the access barriers encountered by persons with disabilities.94 On a similar note, Lazar and Hochheiser point out that if ‘essential government services’ are moving to the on-line environment, and this move is made without concerns for accessibility, this may lead to the denial of such services to persons with disabilities.95 The on-line environment poses challenges if inaccessible, but also has the potential to increase opportunities for participation if designed with accessibility in mind.96 Actions such as an increased openness on (p. 591) the measures adopted by governments to make their websites accessible and the adoption of effective measures to monitor and enforce the accessibility of these websites could play a significant role in eliminating the barriers encountered by persons with disabilities in the on-line environment.97

Measures designed to tackle inaccessible information reflect a social definition of disability, concerned with tackling the accessibility barriers encountered by persons with disabilities and the society’s failure to construct environments that respond to a wide range of abilities.98 Rather than focusing on the medical condition of individuals and a perception of technology as a solution that could ‘fix’ problems encountered by persons with disabilities, the social model is concerned with the wider social implications of inaccessible information and focuses on removing accessibility barriers.99 The positive obligations placed on states parties under article 21(a) CRPD indicate a substantive vision of equality to ensure social inclusion and a proactive approach for achieving social change.100

Article 21(a) CRPD calls for the provision of information ‘in accessible formats and technologies appropriate to different kinds of disabilities’ and sets the basis for a broad level of protection focused on assisting not only persons with sensory disabilities, but also persons with mobility and cognitive disabilities. This is in line with article 3(a), which emphasizes the equal worth of all human beings, irrespective of abilities.101 Article 21(a) does not provide further details of what could amount to the provision of information ‘in accessible formats and technologies appropriate to different kinds of disabilities’, nor does article 2 contain a definition of ‘accessibility’. However, as indicated in article 21(a), accessibility solutions must be focused on assisting all persons with disabilities to enjoy equal access to information intended for the general public. Persons with hearing disabilities could benefit, inter alia, from sign language interpretation (where meaning is conveyed through manual gestures, facial expression and body language)102 and the use of subtitles in television programmes and webcasts (where text is displayed on screen to represent sound effect or speech).103 Further measures could include clean audio programmes, where spoken words and background are broadcast on separate tracks, allowing people the option to de-select the background track.104 Measures to assist persons with visual disabilities could include, among others, audio description (where actions, locations, or characters are described using soundtrack pauses),105 information available in Braille (which is ‘a system of coding language in dots that can be detected by touch’)106 as well as information available in audio format. Further assistance could be provided by screen readers, which convert text into read aloud text displayed in computer screens, identify graphics and images accompanied by text labels, or convert text into Braille.107(p. 592) Persons with cognitive disabilities could benefit from products and services that are easy to use and have clear instructions108 and for information issued to the public (including in the health and the financial sector) to be available in easy to read formats.109 Measures to assist persons with mobility disabilities could include keypads with well-spaced buttons, voice operated controls, and keypad controlled commands for websites (rather than only mouse-operated commands),110 as well as facial mice and touch screens.111 People with speech disabilities who may encounter difficulties in accessing technologies that require voice input, could benefit from devices where such input could be provided through alternative methods.112 Furthermore, all persons with disabilities would benefit from access to services where providers ensured that their staff received adequate training on equality and diversity113 and from access to products and services developed with the involvement of persons with disabilities and their representative organizations.114

The regulatory frameworks of states parties focused on facilitating equality of access to information should ensure that these frameworks protect the interests of all persons with disabilities and should move away from any hierarchy of protection.115 While there is considerable room for improvement in relation to accessibility provisions for persons with hearing disabilities (including the provision of clean audio as a soundtrack option)116 or visual disabilities (including the increased availability of audio described services), regulators tend to focus on sensory disabilities and place insufficient attention to the accessibility requirements of people with cognitive or dexterity disabilities.117 These accessibility concerns are perceived to be more complex, more diverse and harder to define.118 Yet, information plays a key role in the lives of all people and regulatory frameworks must take into account the diverse interests of all.119

Article 21(a) CRPD indicates that accessibility requirements must be provided ‘in a timely manner’, without providing further details on how this is to be achieved. Although the Convention has moved away from the artificial distinction between civil and political rights (framed in negative terms and subject to immediate realization)120 and economic, social, and cultural rights (reliant on positive formulations and subject to progressive realization),121 the inclusion of article 4(2) CRPD in the list of general obligations provides an unwelcome degree of ambiguity.122 Article 4(2) CRPD maintains the approach of progressive realization for economic, social, and cultural rights, adds that this is without prejudice to obligations under the CRPD subject to immediate realization,123 but fails to (p. 593) specify which provisions are subject to immediate realization and which are to be implemented progressively.124 This ambiguity is particularly problematic with regards to the ‘hybrid rights’ developed by the CRPD, which bring together civil and political rights and economic, social, and cultural rights.125 These include the provisions that safeguard equal right to freedom of expression and opinion and access to information, and call for the development of accessible infrastructures to facilitate the exercise of this right.126 The inclusion of article 4(2) is most likely due to cost-related implications associated with the implementation of the Convention.127 Nevertheless, as clarified by the Committee on Economic, Social and Cultural Rights in its General Comment No 3, the call for ‘progressive realisation’ requires states parties to take ‘concrete and targeted’ measures.128 Further clarification in the context of accessibility is provided by the CRPD Committee in its General Comment No 2, which confirms that accessibility barriers should be removed in a ‘continuous and systematic way, gradually, yet steadily’.129 Halvorsen rightly indicates that the requirement for the progressive realization of accessibility obligations requires states parties to demonstrate the efforts taken towards achieving these goals.130 While the CRPD does not employ the vocabulary of ‘regulatory’ and ‘distributive’ policy instruments, both strategies have a role in responding to these obligations.131 Halvorsen defines ‘redistributive policies’ as services aimed at redistributing resources among the public, with the objective of ‘equalising life chances’.132 These services, which may be financed, inter alia, by general taxation or by contributions from service providers proportionate with their annual turnover, may provide persons with disabilities with resources to ‘compensate for barriers in accessing mainstream ICT’ products or services.133 Another strategy towards ensuring the ‘progressive realisation’ of accessibility objectives includes ‘social regulation policies’ which seek to influence ‘the functioning of the market and the behaviour of non-governmental actors’ and which may rely on a range of measures, including legislative provisions requiring the accessibility of ICT products and services or the provision of financial incentives to industry players to invest in research and development for accessible ICTs.134 Halvorsen hints that in the search for accessibility solutions, one potential way forward would be to identify synergies between ‘social redistribution’ and ‘social regulation’ and move away from the current ‘paradox’ where either ‘social redistribution’ or ‘social regulation’ are prioritized by governments.135 Nevertheless, given the importance of accessible infrastructures for facilitating the exercise of the right to freedom of expression and access to information, the urgency in tackling accessibility barriers cannot be overstated.136

The financing of accessibility efforts could rely, as Gybels suggests, on a ‘toolkit of different funding mechanisms’.137 These could include, inter alia, some costs supported by (p. 594) market players which should perceive accessibility costs as ‘perfectly acceptable’, ‘not an undue burden’, and ‘just part of doing business’, in the same way in which they perceive the costs of complying with health and safety requirements for products and services.138 Further funding mechanisms could include general taxation, specific taxation (in the form of a levy collected by service providers from service users and transferred into an accessibility fund) and a universal service model (where market players pay a levy proportionate with their annual turnover to cover the costs of providing accessibility services).139 These approaches would seek to spread accessibility costs fairly, tackle accessibility barriers, and facilitate equal access to information for all.140

Article 21(a) CRPD also indicates that accessibility requirements must be provided ‘without additional costs’ for persons with disabilities. This approach recognizes the close link between accessibility, availability, usability, and affordability.141 Therefore, it is important to ensure not only that ICT products and services are developed to be accessible for and usable by persons with disabilities and are available in the marker, but also that the cost of accessible ICTs does not place these ‘beyond the reach’ of persons with disabilities.142 A link can be made with article 4(1)(g), which calls on states parties to ‘undertake or promote research and development of, and to promote the availability and use of new technologies’, including ICTs ‘suitable for persons with disabilities’, prioritizing ‘technologies at an affordable cost’.143 Nevertheless, the CRPD does not provide any further details on how these intertwined objectives of accessibility, availability, usability, and affordability, are to be achieved. Although the Convention does not rule out the adoption of ‘add on’ accessibility solutions if necessary, articles 4(1)(f) and 9(2)(h) would seem to indicate a preference for universal design, defined as the design of products and services to be usable by all, ‘to the greatest extent possible’ and ‘without the need for adaptation or specialized design’.144 Article 4(1)(f) places a general obligation on states parties to undertake or promote research and development of ICT products or services based on universal design, while article 9(2)(h) calls on states parties to promote the integration of accessibility features at an early stage in the design and development of ICT products and services. Unlike ‘add on’ devices, which may require additional expenses from persons with disabilities and may render these products unaffordable,145 accessibility solutions integrated into mainstream products share accessibility costs among all consumers.146 In (p. 595) contrast to add on solutions (reactive approach),147 universal design provides a positive message of accessibility as an integral part in the design and development of ICT products and services (proactive approach).148 Technology is developed to respond to ‘the full range of repertoires that exist in society’, based on the assumption that ‘all characteristics will be encountered’,149 to enable full and equal participation in society.

5.  Subparagraph (b)

The right of persons with disabilities to freedom of expression and opinion and access to information implies a right to ‘both understand and be understood’.150 In the context of ‘official interactions’, article 21(b) CRPD requires states parties to take all appropriate measures to accept and facilitate the use of ‘sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication’, as chosen by persons with disabilities. Scheinwald rightly notes that this specific list of formats of communication is ‘significant’, as ‘it makes avoidance of implementation on grounds of vagueness, difficult to justify’.151 Furthermore, these formats of communication are comprised into a non-exhaustive list, aimed to ensure that these provisions remain relevant, as technology progresses and new formats of communication are developed.

This provision would have been strengthened by the adoption of the text originally proposed by the Working Group established by the Ad Hoc Committee to prepare the draft Convention,152 which required states parties not only to facilitate the use of accessible means of communication, but also to promote the ‘provision and training of live assistance and intermediaries, such as Braille and caption transcribers, note-takers, sign language and tactile communication interpreters, and readers’.153 Regrettably, this detail was not included into the final text of article 21(b) CRPD, despite support from the World Blind Union and the World Federation of the Deaf.154 The inclusion of this proposal would have been an important step in addressing the challenge highlighted by the CRPD Committee that the number of qualified sign language interpreters is currently too low and the costs of their services tends to increase due to travel requirements.155 On a similar note, Ellis and Goggin note that the production of materials in Braille requires expertise and continues to be a ‘laborious and expensive process’.156 Consequently, states parties should not only accept the use of alternative formats of communication but should adopt a broad reading of the requirement to ‘facilitate’ such formats of communication by ensuring their availability and by investing in the training of interpreters and transcribers.

The ‘official context’ of article 21(b) CRPD is of particular importance, as an effective implementation of this provision would provide deaf people with ‘the right to submit a (p. 596) document in sign language and receive a response in that language, receive information in court, transact in [public] offices and departments and receive consumer information in sign language’.157 Similar arguments can be made concerning, inter alia, the use of Braille, large print or plain language. The absence of a definition for ‘official interactions’ may raise questions about the exact scope of article 21(b). Further clarifications on the scope of this provision may be provided by the CRPD Committee in the future through its jurisprudence and/or by issuing a general comment on article 21. However, reading article 21(b) in light of the Convention’s purpose,158 general principles, and obligations,159 general duty on accessibility160 and specific provisions on, inter alia, access to justice, education, and health,161 would suggest a broad understanding of the concept of ‘official interactions’.

6.  Subparagraph (c)

Article 21(c) CRPD calls on states parties to ‘urge’ private providers of services to the general public, to provide these services and information in a manner that is accessible for, and usable by persons with disabilities. This is in contrast with the language originally proposed at the Third Session of the Ad Hoc Committee by some states parties, including Jordan and Yemen, when they called for mandatory provisions to ‘require’ private providers to make their services accessible.162 The non-mandatory language of ‘urging’ private actors to provide accessible services is likely to be less effective than mandatory language that would ‘require’ accessibility. Private service providers often lack the economic incentives to integrate accessibility features at the design stage for ICT products and services, due to the diverse accessibility requirements of persons with disabilities and the limited consumer power of individual groups of persons with disabilities.163 Ferri rightly notes that market players tend to be ‘hesitant’ to invest resources for the development of ICT products and services, as ‘the decision to innovate often takes place under great uncertainty’ and ‘the path from an idea to a ready product’ can be discouragingly long.164 Merely encouraging private actors to provide accessible services does not go far enough to overcome the accessibility barriers encountered by persons with disabilities to access information, including ICTs.165

Although the CRPD employs non-mandatory language with regards to private service providers, the language adopted for the obligations of states parties provides reasons for optimism. The requirements on states parties to ‘urge’ private actors to provide accessible services is part of the obligation on states parties to ‘take all appropriate measures’ to ensure that persons with disabilities can exercise their equal right of access to information.166 A link (p. 597) can be made with article 4(e) CRPD, which calls on states parties to ‘take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’.167 Lewis accurately notes that this provisions sets ‘a high bar’, as it requires ‘not just an action plan, not some steps, not reasonable measures, but all appropriate ones’.168 Parallels can also be drawn with the accessibility requirements under article 9(2)(b), which calls on states parties to ‘take appropriate measures’ to ensure that private actors providing services to the general public ‘take into account all aspects of accessibility’ for persons with disabilities. In Nyusti and Takács v Hungary,169 a case challenging Hungary’s compliance with the CRPD, following the failure of a private bank to provide accessible ATMs, the CRPD Committee confirmed that Hungary failed to fulfil its obligations under article 9(2)(b) CRPD.170 The CRPD Committee noted, inter alia, that Hungary was ‘under an obligation to take measures to prevent similar violations in the future’, including by ‘establishing minimum standards for the accessibility of banking services provided by private financial institutions for persons with visual and other types of impairments’.171 As emphasized by the Committee in its General Comment No 2, when addressing accessibility issues, the focus is ‘no longer on legal personality and the public or private nature of this who own’ the infrastructure of ICT services, but on whether the ICT products and services are provided to the public.172 Persons with disabilities should, therefore, have ‘equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity’.173

The CRPD Committee also confirms that the requirement on service providers to ensure that persons with disabilities enjoy access to services open to the public ‘should be seen from the perspective of equality and non-discrimination’.174 In addition to the anticipatory duty on states parties to provide accessibility to persons with disabilities as a group,175 denial of access to services open to the public could amount to ‘an act of disability-based discrimination’.176 The strength of these provisions is weakened by limitations entrenched in article 2 CRPD, which defines reasonable accommodation as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case’ to ensure equal enjoyment and exercise of human rights and fundamental freedoms by persons with disabilities.177 The ambiguity surrounding the meaning of the terms ‘disproportionate or undue burden’, as well as the choice of the word ‘burden’ in this context, are sources of concern.178 Nevertheless, the combined reading of articles 5(3) and 9 CRPD and the requirement for both proactive and reactive approaches for eliminating accessibility barriers has the potential to engender positive changes for facilitating access to information.179(p. 598) De Campos Velho Martel comments that ‘reasonable accommodation’ should be interpreted to mean ‘effective accommodation for the individual or group’, ensured, inter alia, through the ‘prevention and elimination of segregation, humiliation and stigma’.180 Such interpretation of ‘reasonable accommodation’ recognizes a clear link with the general principles of, inter alia, ‘respect for inherent dignity’181 and ‘respect for difference and acceptance of persons with disabilities as part of human diversity and humanity’.182 Despite the merits of the decision in Nyusti,183 discussed above, the CRPD Committee has missed an opportunity to explore in more depth the link between accessibility and the right to reasonable accommodation, with reference to the responsibility of states parties for the actions of non-state actors. Although the applicants in Nyusti relied on both article 9 CRPD (accessibility) and on article 5 CRPD (prohibition of disability-based discrimination), the CRPD Committee refused to consider the case under article 5 CRPD, despite its ‘clear relevance’,184 and provided no explanation for their refusal.185 Some guidance is, however, provided by the CRPD Committee decision in F v Austria,186 which confirms that while reasonable accommodation requirement concerns individuals, accessibility requirements concern groups, and the ex-ante duty to provide accessibility is unconditional.187 As clarified by the CRPD Committee, ‘an entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing accessibility to persons with disabilities’.188 This approach sends the message that accessibility should be perceived not through an economic lens focused on costs, but through a social lens focused on rights.

Accessibility solutions are technically possible189 and their adoption and implementations relies on efforts from all key stakeholders, including policymakers, public and private service providers, persons with disabilities, and their representative organizations.190 Private service providers generally favour reduced regulation and oppose active regulatory intervention, tend to perceive the public as consumers (economic actors) rather than citizens (social actors)191 and overlook the wider social implications associated with access to ICTs.192 Instead of relying solely on market forces to deliver accessibility, a more effective response for ensuring accessibility in the ICT sector could be delivered through the complementary application of economic regulation (to protect consumer interests) and social regulation (to safeguard citizenship interests, ensure equal access to (p. 599) information and facilitate participation in society). This discussion relies on an understanding of regulation as ‘sustained focused control’ by a public agency of activities ‘valued by a community’.193

Social regulatory measures to ensure accessibility could include, inter alia, the provision of financial incentives for market players to ‘invest in research and development of more accessible ICT products’, facilitating dialogue between industry players and disabled people’s user led organizations ‘to identify market opportunities and unmet consumer needs’, requiring all industry partners that contract with the government to comply with set accessibility standards and including accessibility requirements in public procurement, by ‘using the purchasing power of the Government to stimulate market actors to deliver accessible products’.194 The relevance of effective public procurement laws in incorporating accessibility requirements has also been highlighted by CRPD Committee in its General Comment No 2 (to article 9 CRPD), when it emphasized that it would be unacceptable if public funds were used to ‘create or perpetuate the inequality’ associated with inaccessible services and facilities.195 In fact, public procurement measures that include accessibility conditions are a proactive way for ensuring ‘de facto equality’ for persons with disabilities.196 This approach was echoed in the CRPD Committee decision in F v Austria, which, in the context of ICTs, called for public procurement measures to ensure the equal access of persons with disabilities to goods and services and to review and adopt these measures in consultation with persons with disabilities and disabled people’s user led organizations.197

Social regulatory measures should also be enhanced by the inclusion of ‘an individual right to accessibility through non-discrimination law’.198 Unfortunately, the CRPD stops short of articulating an individual right to accessibility. Despite the merits of the Convention in promoting accessibility and defining the obligations of states parties in removing accessibility barriers,199 the CRPD does not refer explicitly to a right to accessibility.200 An argument could be made, however, that such a right is implicit in the Convention, particularly when article 9 CRPD is read in light of article 1 (purpose) and other provisions with clearly articulated rights, such as article 5 (non-discrimination), article 19 (independent living), and article 21 CRPD (freedom of expression and opinion and access to information).

7.  Subparagraph (d)

Article 21(d) CRPD calls on states parties to ‘encourage’ the mass media to provide accessible services for persons with disabilities. Parallels can be drawn with the non-mandatory language adopted in article 9(2)(d), where states parties are asked to ‘promote’ the accessibility of new ICTs, including the Internet. The reliance on non-mandatory language (to ‘encourage’ or ‘promote’, rather than ‘ensure’ accessibility) places flexibility (p. 600) in the hands of the industry. Yet, market players tend to perceive the public as economic actors and interactions between service providers and the public varies, depending on people’s financial means. As Prosser rightly notes, markets constitute ‘a seriously inadequate means of protecting citizenship rights’, can only deal with quantifiable issues and do not place sufficient weight on substantive concerns for equality.201 Solely relying on market forces and reduced regulation is unlikely to remove the accessibility barriers encountered by persons with disabilities and it would be preferable to rely on the complementary application of economic and social regulation to achieve these goals. To protect the rights of persons with disabilities in the media sector, regulatory frameworks must address the issue of access to information as a citizenship right. Given the important role played by the media in ensuring an informed citizenry, it cannot be treated like any other industry202 and a higher degree of regulatory intervention is necessary to safeguard the democratic expectations of all citizens, including persons with disabilities. The public enjoys the right of access to information as citizens, irrespective of whether the providers of these services are public or private bodies. Regulators need to safeguard these citizenship rights and tackle not only the economic implications of any access barriers but also their social and political implications.203

Although article 21(d) CRPD merely requires states parties to ‘encourage’ the mass media to make their services available to persons with disabilities, this provision must be read in the context of the wider requirement on states parties under article 21 to ‘take all appropriate measures’ to ensure the equal access of persons with disabilities to information. The additional requirements on states parties under article 9 to ‘take appropriate measures’ to ensure that persons with disabilities can exercise their equal right of access to ICTs and under article 30(1)(b) to ensure the accessibility of television programmes, indicate that states parties cannot be complacent and rely solely on market players to address accessibility concerns. States parties should take active steps to regulate market players within their jurisdictions and remove accessibility barriers in the media sector. These objectives concern, inter alia, information communicated through radio, television, mobile phones, computers, and newspapers. The CRPD recognizes the centrality of the media in people’s lives and, as Ellis and Goggin comment, opens the possibility to ‘rethink’ the media to facilitate not only access to information but also the involvement of persons with disabilities in the production of information.204 Therefore, rather than perceiving accessibility as a means to enable people to be passive consumers of information, accessibility must be understood as an instrument to facilitate persons with disabilities in exercising their equal right of access to information and freedom of expression and opinion as active citizens.

The elimination of accessibility barriers to services transmitted via the Internet is particularly important, given the widespread use of this medium as a source of information and its potential role in facilitating participation in society.205 The Internet can be seen (p. 601) as a component of the ‘public sphere’, which has been defined by Habermas as a place where citizens can engage in public debate, free from government or market controls.206 In this virtual place for debate, people can exchange ideas and shape their views about the world.207 As technological advances redefine ‘the infrastructure of discourse’,208 it is important to ensure that technology is developed with accessibility in mind and that no one is excluded from taking part in these exchanges of ideas.209 The negative consequences associated with lack of effective access to the Internet include, inter alia, reduced opportunities to participate in society, isolation210 and a denial of the equal right of persons with disabilities to ‘live in the Internet’ and benefit from all the economic, political, and social opportunities provided by this medium.211 Furthermore, as Lawson accurately comments, people who encounter barriers to access the Internet are ‘likely to fall into socially disadvantaged groups and to have lower incomes’ and people with disabilities are ‘disproportionately likely to fall into these categories’ and experience digital exclusion.212 Yet, ensuring the accessibility of services provided via the Internet poses a particular set of challenges, given the transnational nature of this medium and the consequent enforceability concerns and blurred lines of responsibility.213 Article 32(1) CRPD can assist in addressing some of the enforceability challenges associated with the regulation of the Internet, as it requires states parties to ‘undertake appropriate and effective measures’ to facilitate international cooperation to pursue the CRPD objectives (including by sharing information and best practices and cooperating in research). An effective implementation of the CRPD could assist in facilitating international cooperation to regulate transnational service providers (including providers of information through the Internet), to eliminate accessibility barriers and harmonize standards for accessible ICTs.214

8.  Subparagraph (e) ‘Recognizing and promoting the use of sign languages’

For deaf people, the right to freedom of expression and opinion and access to information includes a right to communicate in sign language and to have this language officially recognized.215 Sign language is the natural language deaf people.216 It is a ‘linguistically (p. 602) complete method of manual communication’ that is ‘naturally accessible’ to persons who rely on their visual orientation ‘to gather information and to develop language’.217 Several sign languages developed worldwide, with their own grammatical structure, lexicon, and ability to convey complex and abstract ideas.218 Article 21(e) CRPD calls on states parties to take all appropriate measures to recognize and promote the use of sign languages, but does not provide further details of how this is to be achieved. The IDA CRPD Forum comments that the use of sign languages should be ‘recognised in legislation and/or public policies and programmes’ and that the promotion of sign languages includes ‘support for sign language publications, training, education, research and general usage’.219

The recognition and promotion of the use of sign languages must be read in light of, inter alia, the Convention’s general principles of ‘respect for difference and acceptance of persons with disabilities as part of human diversity and humanity’ and ‘respect for the right of children with disabilities to preserve their identities’.220 Furthermore, article 30(4) CRPD calls on states parties to ensure that persons with disabilities are entitled to equal ‘recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture’. The IDA CRPD Forum interprets this as a requirement for the accessibility of cultural materials, media programmes, films, literature, and cultural activities and for supporting, among others, ‘sign language theatres, poetry, songs and literature’.221

Article 21(e) CRPD must also be read in light of article 5(3) CRPD, which calls on states parties to take ‘all appropriate steps to ensure that reasonable accommodation is provided’ to ‘promote equality and eliminate discrimination’, (subject to the problematic ‘disproportionate or undue burden’ defence).222 A further link is made with article 9(2)(e) CRPD, which requires states parties to ‘take all appropriate measures’ to ‘provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public’. As stressed by the IDA CRPD Forum, the requirement to provide ‘professional sign language interpreters’ implies an obligation on states parties to ‘promote and develop sign language interpreter training, degree and registration, facilitate interpreter services and promote access to interpreters’.223

A link must also be made between with article 24(3) CRPD, which calls on states parties to ‘take appropriate measures’ to ‘facilitate the learning of sign languages and the promotion of the linguistic identity of the deaf community’ and to deliver education ‘in the most appropriate languages … for the individual’. These measures are necessary to enable persons with disabilities ‘to learn life and social development skills to facilitate their full and equal participation in education and as members of the community’. An effective implementation of these provisions is particularly important for deaf children under the age of five, who require regular exposure to sign language to ensure their full linguistic and cognitive development.224 Although the CRPD does not refer explicitly to a legal right to (p. 603) language, this right is implied in the Convention.225 As Muhlke accurately comments, the acquisition and use of sign languages must be perceived from a human rights perspective as ‘an indispensable tool’ for the enjoyment of all other human rights.226

In adopting a rights-based perspective, the focus must move beyond the cost of inclusion (eg costs associated with promoting the use of sign languages) and must consider the cost of exclusion caused by accessibility barriers and the wider social benefits of inclusion that result from removing these barriers.227 In implementing the CRPD, states parties are required to ‘closely consult with and actively involve persons with disabilities’.228 The implementation process is reliant on commitment from policymakers, regulators, market players, persons with disabilities, their representative organizations, and the general public.229 States parties must not overlook the urgency for eliminating accessibility barriers and for bridging the ‘digital divide’ between those with, and those without effective access to information.230

Footnotes:

1  Mike Feintuck and Mike Varney, Media Regulation, Public Interest and the Law (2nd edn, Edinburgh University Press 2006) 250.

2  Eliza Varney, Disability and Information Technology: A Comparative Study in Media Regulation (CUP 2013).

3  CRPD Committee, General Comment No 2: Article 9 (Accessibility), UN Doc CRPD/C/GC/2 (11 April 2014) para 1.

4  Paul T Jaeger, ‘Telecommunications Policy and Individuals with Disabilities: Issues of Accessibility and Social Inclusion in the Policy and Research Agenda’ (2006) 30 Telecommunications Policy 112.

5  Kerry Dobransky and Eszter Hargittai ‘The Disability Divide in Internet Access and Use’ (2006) 9 Information, Communication and Society 314; Tomoko Kanayama, ‘Leaving It All up to Industry: People with Disabilities and the Telecommunications Act of 1996’ (2003) 19 Information Society 185, 193; Vandana Chaudhry and Thomas Shipp, ‘Rethinking the Digital Divide in Relation to Visual Disability in India and the United States: Towards a Paradigm of “Information Inequity”’ (2005) 25 Disability Studies Quarterly.

6  Secretariat for the Convention on the Rights of Persons with Disabilities, ‘The Convention is in Force: What Next?’ (2008), available at: <www.un.org/disabilities/default.asp?id=477> (quoting Akiko Ito, Chief of the UN Secretariat for the CRPD).

7  New York, 13 December 2006, entered into force 3 May 2008 2515 UNTS 3.

8  New York, 16 December 1966, entered into force 23 March 1976 999 UNTS 171.

9  Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1.

10  Edward L Myers, ‘Disability and Technology’ (2004) 65 Montana Law Review 289, 323.

11  New York, 16 December 1966, entered into force 3 January 1976 993 UNTS 3.

12  Michael Ashley Stein, ‘A Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities’ (2007) 31 Mental and Physical Disability Law Report 679.

13  Kayess and French (n 9) 14.

14  Michael Ashley Stein and Janet Lord, ‘Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities’ (2008) 13 Texas Journal on Civil Liberties and Civil Rights 167, 174.

15  Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors’ Professional Training Series no 17 (New York United Nations) 2010 24.

16  Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 616.

17  Kayess and French (n 9) 3.

18  UNGA Res 56/168 (19 December 2001).

19  Secretariat for the Convention on the Rights of Persons with Disabilities (SCRPD), ‘Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (2008), available at: <http://www.un.org/disabilities/default.asp?id=1423>.

20  ibid Third Session 24 May to 4 June 2004.

21  ibid Second Session 16 to 27 June 2003.

22  ibid Working Group 5 to 16 January 2004 (emphasis added).

23  Art 4(g) CRPD (emphasis added).

24  SCRPD (n 19) (Working Group 5 to 16 January 2004).

25  ibid Third Session 24 May to 4 June 2004.

26  ibid Fourth Session 23 August to 3 September 2004.

27  ibid Third Session 24 May to 4 June 2004.

28  Art 21(c) CRPD.

29  SCRPD (n 19) Third Session 24 May to 4 June 2004.

30  ibid Second Session 16 to 27 June 2003; for further discussion of the issue of standardization, see Natali Helberger, ‘Access to Technical Bottleneck Facilities—The New European Approach’ (2002) 46 Communication and Strategies 1; Catherine Easton, ‘Revisiting the Law on Website Accessibility in the light of the Equality Act 2010 and the UNCRPD’ (2012) 20 International Journal of Law and Information Technology 19.

31  SCRPD (n 19) Working Group, 5 to 16 January 2004.

32  ibid Seventh Session, 16 January to 3 February 2006.

33  ibid.

34  OHCHR (n 15) 24.

35  UN HRC, General Comment 34: Article 19 (Freedoms of Opinion and Expression) UN Doc CCPR/C/GC/34 (21 July 2011); see Bakur v Belarus UN Doc CCPR/C/114/D/1902/2009 (7 September 2015).

36  Art 19(1) ICCPR.

37  Amita Dhanda, ‘Constructing a New Human Rights Lexicon: Convention on the Rights of Persons with Disabilities’ (2008) 5 Sur: International Journal of Human Rights 43, 49.

38  ibid see Arts 9 and 21 CRPD.

39  ibid Dhanda 55.

40  Para (c) preamble CRPD.

41  Don MacKay, ‘The United Nations Convention on the Rights of Person with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 323, 330.

42  CRPD Committee General Comment No 2 para 14.

43  Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145, 154–55.

44  ibid 163.

45  Deborah Stienstra and Lindsey Troschuk ‘Engaging Citizens with Disabilities in eDemocracy’ (2005) 25 Disability Studies Quarterly.

46  For a detailed discussion of the importance of accessibility in a wide range of contexts (including access to libraries, e-books, e-learning, and open government) see Jonathan Lazar and Michael Ashley Stein (eds), Global Inclusion: Disability, Human Rights and Information Technology (University of Pennsylvania Press 2017).

47  Art 13 CRPD.

48  Art 19 CRPD.

49  Art 24 CRPD.

50  Art 25 CRPD.

51  Art 27 CRPD.

52  Art 29 CRPD.

53  Art 30 CRPD.

54  Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008).

55  Art 21 CRPD.

56  International Disability Alliance (IDA) CRPD Forum, ‘Contribution to 2008 Thematic Study on Legal Measures for the Implementation of the CRPD’, Geneva 15 August 2008, 30 and 35.

57  Kayess and French (n 9) 1; see Oddny Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities—European and Scandinavian Perspectives (Brill 2009); Heiner Bielefeldt, ‘New Inspiration for the Human Rights Debate: The Convention on the Rights of Persons with Disabilities’ (2007) 52 Netherlands Quarterly of Human Rights 397; Eilionóir Flynn, Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities (Ashgate 2015); Arlene Kanter, ‘The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Journal of International Law and Commerce 287; Aart Hendriks, ‘UN Convention of the Rights of Persons with Disabilities’ (2007) 14 European Journal of Health Law 273; Penelope Weller, ‘Human Rights and Social Justice: The Convention on the Rights of Persons with Disabilities and the Quiet Revolution in International Law’ (2009) 4 Public Space: The Journal of Law and Social Justice 74.

58  Art 12(2) CRPD.

59  Art 12(1) CRPD.

60  Art 12(5) CRPD.

61  Art 12(3) CRPD.

62  CRPD Committee, General Comment No 1: Article 12 (Equal Recognition before the Law) UN Doc CRPD/C/GC/1 (19 May 2014).

63  ibid para 17.

64  Michael Bach, ‘The Right to Legal Capacity under the UN Convention on the Rights of Persons with Disabilities: Key Concepts and Directions for Law Reform’, Toronto, Institute for Research and Development on Inclusion and Society (IRIS 2009) 22.

65  Robert Dinerstein, ‘Implementing Legal Capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making’ (2012) 19 Human Rights Brief 8, 10.

66  Anna Nilsson, ‘Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities’ Issue Paper, Council of Europe (February 2012) 19.

67  CRPD Committee, General Comment No 1 para 18.

68  ibid para 29(f).

69  ibid para 37.

70  Jennifer L Gregg, ‘Policy-Making in the Public Interest: A Contextual Analysis in the Passage of Closed-Captioning Policy’ (2006) 21 Disability and Society 537.

71  Robert F Drake, Understanding Disability Policies (Palgrave Macmillan 1999).

72  Varney (n 2); Feintuck and Varney (n 1) 250.

73  Deirdre M Smith, ‘Who Says You’re Disabled? The Role of Medical Evidence in the ADA Definition of Disability’ (2007) 82 Tulane Law Review 1, 71.

74  Art 3(a) CRPD.

75  Art 3(c) CRPD.

76  Art 3(f) CRPD.

77  Art 4 CRPD.

78  Halvor Hanish, ‘Recognising Disability’, in Jerome Bickenbach et al (eds), Disability and the Good Human Life (Cambridge University Press 2014) 124; see C Taylor, Philosophical Arguments (Harvard University Press 1995) 226.

79  ibid 126.

80  ibid 129.

81  ibid 133.

82  Art 3(a) CRPD.

83  Art 3(d) CRPD.

84  Art 1 CRPD.

85  Brad Areheart and Michael Ashley Stein, ‘Integrating the Internet’ (2015) 83 George Washington Law Review 449, 494.

86  Jaeger (n 4) 114.

87  Interview with Guido Gybels, RNID (now Action on Hearing Loss) 17 August 2009.

88  Fredman (n 43) 155.

89  Art 21(a) CRPD.

90  Gregg, ‘Policy-making in the Public Interests (n 70) 537; Anthony E Varona, ‘Changing Channels and Bridging Divides: The Failure and Redemption of American Broadcast Television Regulation’ (2004) 6 Minnesota Journal of Law, Science and Technology 1, 99.

91  CRPD Committee, General Comment No 2 para 1.

92  World Health Organization and World Bank, ‘World Report on Disability’ 2011. See CRPD Committee, General Comment No 2 para 7.

93  Jonathan Lazar and Paul Jaeger, ‘Reducing Barriers to Online Access for People with Disabilities’ (2011) 27 Issues in Science and Technology 68.

94  ibid.

95  Jonathan Lazar and Harry Hochheiser, ‘Legal Aspects of Interface Accessibility in the US’ (2013) 56 Communications of the ACM 74, 79.

96  Lazar and Jaeger (n 93).

97  ibid.

98  Michael Oliver, The Politics of Disablement (Palgrave Macmillan, 1990); Michael Oliver and Colin Barnes, The New Politics of Disablement (2nd edn, Palgrave Macmillan 2012).

99  Stienstra and Troschuk (n 45).

100  Fredman (n 54).

101  Art 3(a) CRPD; Kayess and French (n 9) 11.

102  Ofcom, Code on Television Access Services 13 May 2015 A4.38.

103  ibid A4.11.

104  Royal National Institute of Blind People, ‘Response to the Draft Communication Bill’ 1 August 2002 Recommendation 25.

105  Ofcom (n 102) A4.22.

106  Katie Ellis and Gerard Goggin, Disability and the Media (Palgrave Macmillan 2015) 41.

107  Jonathan Bick, ‘Americans with Disabilities Act and the Internet’ (2000) 10 Albany Law Journal of Science and Technology 205, 216.

108  Richard E Moberly, ‘The Americans with Disabilities Act in Cyberspace: Applying the “Nexus” Approach to Private Internet Websites’ (2004) 55 Mercer Law Review 963.

109  CRPD Committee, General Comment No 2, para 7.

110  Michael Finnigan Jr et al ‘Accommodating Cyberspace: Application of the Americans with Disabilities Act to the Internet’ (2007) 75 University of Cincinnati Law Review 1795.

111  Esther Baños García, ‘Assistive Technology and Disability’ in Edurne García Iriarte et al (eds), Disability and Human Rights: Global Perspectives (Palgrave Macmillan 2016) 177.

112  Anthony Tusler, ‘How to Make Technology Work: A Study of Best Practices in United States Electronic and Information Technology Companies’ (2005) 25 Disability Studies Quarterly.

113  CRPD Committee, General Comment No 2 para 7.

114  ibid para 19.

115  Eliza Varney, ‘A Hierarchy of Disability Rights? A Comparative Examination of the Regulation of Digital Television in the United States of America and the United Kingdom’ (2009) 60 Northern Ireland Legal Quarterly 421.

116  Gybels (n 87).

117  Varney (n 2).

118  ibid.

119  Lynne Davis, ‘Riding with the Man on the Escalator: Citizenship and Disability’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability and Legal Change (Brill 1999) 71.

120  Art 2 ICCPR.

121  Art 2(1) ICESCR.

122  Dhanda (n 37) 55.

123  Art 4(2) CRPD.

124  Gerard Quinn, ‘The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability’ (2009) 15 Texas Journal on Civil Liberties and Civil Rights 33, 44.

125  MacKay (n 41) 576.

126  Arts 21(a) and 9(2)(g) and (h) CRPD.

127  Quinn (n 124) 44.

128  CESCR, ‘General Comment No 3: Article 2(1): The Nature of States Parties Obligations’ UN Doc E/1991/23 (14 December 1990).

129  CRPD Committee, General Comment No 2 para 27.

130  Rune Halvorsen, ‘Digital Freedom for Persons with Disabilities: Are Policies to Enhance e-Accessibility and e-Inclusion Becoming More Similar in the Nordic Countries and the US?’ (2010) 2 European Yearbook of Disability Law 77, 99.

131  ibid.

132  ibid 78.

133  ibid.

134  ibid 79.

135  ibid 102.

136  Myers (n 10) 307.

137  Gybels (n 87).

138  ibid.

139  ibid; for a more detailed discussion of Gybels’ proposed ‘toolkit of funding mechanisms’ see Varney (n 2).

140  Fredman (n 54) 179; Caroline Gooding, Disabling Laws, Enabling Acts: Disability Rights in Britain and America (Pluto Press 1994) 30.

141  Anna Lawson, ‘Challenging Disabling Barriers to Information and Communication Technologies in the Information Society: A UK Perspective’ (2010) 2 European Yearbook of Disability Law 131, 133.

142  ibid; Axel Leblois, ‘Implementing the Digital Accessibility Agenda of the Convention on the Rights of Persons with Disabilities: Challenges and Opportunities’ (2009) 1 European Yearbook of Disability Law 139, 141.

143  Art 4(1)(g) CRPD.

144  Art 2 CRPD; see David Lepofsky and Randal Graham, ‘Universal Design in Legislation: Eliminating Barriers for People with Disabilities’ (2009) 30 Statute Law Review 97; Mary Hums et al, ‘Universal Design: Moving the Americans with Disabilities Act from Access to Inclusion’ (2016) 26 Journal of Legal Aspects of Sport 36.

145  Halvorsen (n 130) 77.

146  Karen Peltz Strauss, ‘Past and Present: Making the Case for a Regulatory Approach to Addressing Disability Discrimination in the Provision of Emerging Broadband and Cable Technologies’ Broadband and Cable Television Law, Practising Law Institute, New York 2010, 943.

147  Dobransky and Hargittai (n 5).

148  Gerard Goggin and Christopher Newell ‘An End to Disabling Policies? Towards Enlightened Universal Service’ (2000) 16 The Information Society 127.

149  Kayess and French (n 9) 10.

150  SCRPD (n 19), Fourth Session, 23 August to 3 September 2004.

151  Aaron Scheinwald, ‘Who Could Possibly Be against a Treaty for the Blind?’ (2012) 22 Fordham Intellectual Property, Media and Entertainment Law Journal 445.

152  SCRPD (n 19) Third Session 24 May to 4 June 2004.

153  Ibid, Working Group 5 to 16 January 2004.

154  ibid.

155  CRPD Committee, General Comment No 2 para 7.

156  Ellis and Goggin (106) 41.

157  Andrea R Ball ‘Equal Accessibility for Sign Language under the Convention on the Rights of Persons with Disabilities’ (2011) 43 Case Western Reserve Journal of International Law 759, 784.

158  Art 1 CRPD.

159  Arts 3 and 4 CRPD.

160  Art 9 CRPD.

161  Arts 13, 24, and 25 CRPD.

162  SCRPD (n 19), Third Session 24 May to 4 June 2004.

163  Jennifer Simpson, ‘Inclusive Information and Communication Technologies for People with Disabilities’ (2009) 29 Disability Studies Quarterly; Mike Feintuck, ‘The Public Interest’ in Regulation (OUP 2004).

164  Delia Ferri, ‘Subsidising Accessibility: Using EU State Aid Law and Policy to Foster Development and Production of Accessible Technology’ (2015) 14 European State Aid Law Quarterly 51, 54.

165  Eliza Varney, ‘Disability Rights in the Communications Sector: An Examination of Digital Television Regulation in the United Kingdom’ (2008) 13 Communications Law 187; Eliza Varney, ‘The Protection of Age and Disability Rights in the Regulation of Digital Television in the European Union’ (2008) 17 Utilities Law Review 6.

166  Art 21 CRPD.

167  Art 4(a) CRPD.

168  Oliver Lewis, ‘Nyusti and Takacs v Hungary: Decision of the UN Committee on the Rights of Persons with Disabilities’ (2013) 4 European Human Rights Law Review 419, 420.

169  CRPD Committee, ‘Communication No 1/2010: Views of the Committee’ UN Doc CRPD/C/9/D/1/2010 (21 June 2013).

170  ibid para 10.

171  ibid para 10(2)(a); see Anna Lawson, ‘Accessibility Obligations in the UN Convention on the Rights of Persons with Disabilities: Nyusti and Takacs v Hungary’ (2014) 30 South African Journal on Human Rights 380.

172  CRPD Committee, General Comment No 2 para 13.

173  ibid.

174  ibid para 34.

175  Art 9 CRPD.

176  Art 5 CRPD; see CRPD Committee, General C 2, paras 25 and 34.

177  Art 2 CRPD.

178  Kayess and French (n 9) 27.

179  Anna Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 Industrial Law Journal 359; see also Arlene Kanter, ‘The Americans with Disabilities Act at 25 Years: Lessons to Learn from the Convention on the Rights of People with Disabilities’ (2015) 63 Drake Law Review 819.

180  Leticia de Campos Velho Martel, ‘Reasonable Accommodation: The New Concept from an Inclusive Constitutional Perspective’ (2011) 14 Sur International Journal on Human Rights 84, 106.

181  Art 3(a) CRPD.

182  Art 3(d) CRPD.

183  CRPD/C/9/D/1/2010 (n 169).

184  Lewis (168) 421.

185  ibid.

186  CRPD Committee, ‘Communication No 21/2014: Views of the Committee’ UN Doc CRPD/C/14/D/21/2014 (21 September 2015).

187  ibid para 8.4.

188  ibid.

189  Lazar and Jaeger (n 93).

190  Deborah Stienstra, et al ‘A Three-Way Dance: The Global Public Good and Accessibility in Information Technologies’ (2007) 23 The Information Society 149.

191  Eliza Varney, ‘Regulating the Digital Television Infrastructure in the EU: Room for Citizenship Interests?’ (2006) 3 SCRIPT-ed: Online Journal 221; Eliza Varney, ‘Winners and Losers in the Communications Sector: An Examination of Digital Television in the United Kingdom’ (2005) 6 Minnesota Journal of Law, Science and Technology 645.

192  Tony Prosser, The Limits of Competition Law—Markets and Public Services (OUP 2005) 28.

193  Philip Selznick, ‘Focusing Organisational Research on Regulation’ in Roger G Noll (ed), Regulatory Policy and Social Sciences (University of California Press 1985) 363.

194  Halvorsen (n 130) 77.

195  CRPD Committee, General Comment No 2 para 32.

196  ibid.

197  CRPD/C/14/D/21/2014 (n 186) para 9(iii).

198  ibid.

199  Art 9 CRPD.

200  Lewis (n 168) 421.

201  Prosser (n 192); Edward S Herman and Robert McChesney, The Global Media: The New Missionaries of Corporate Capitalism (Cassell 1997); Robert McChesney, Rich Media, Poor Democracy: Communications Politics in Dubious Times (New Press 2000).

202  Mike Feintuck, ‘Walking the High-wire: the UK’s Draft Communications Bill’ (2003) 9 European Public Law 105.

203  Varney (n 2) 14.

204  Ellis and Goggin (n 106) 116.

205  Anthony Varona, ‘Toward a Broadband Public Interest Standard’ (2009) 61 Administrative Law Review 1, 8; Jeremy Rifkin, The Age of Access (Tarcher Putnam 2000) 234.

206  Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Polity Press 1992); Jurgen Habermas, Between Facts and Norms (Polity Press 1997).

207  Monroe E Price, ‘Free Expression and Digital Dreams: The Open and Closed Terrain of Speech’ (1995) Critical Inquiry 64.

208  ibid.

209  Varney (n 2) 11–12.

210  Katherine Rengel, ‘The Americans with Disabilities Act and Internet Accessibility for the Blind’ (2008) 25 John Marshall Journal of Information Technology and Privacy Law 543, 583.

211  Areheart and Stein (n 85) 449.

212  Lawson (n 141) 131.

213  Uta Kohl, Jurisdiction and the Internet: Regulatory Competence over Online Activity (Cambridge University Press 2007); Lee A Bygrave and Jon Bing (eds), Internet Governance: Infrastructure and Institutions (OUP 2009); Alan Sears, ‘Protecting Freedom of Expression over the Internet: An International Approach’ (2015) 5 Notre Dame Journal of International and Comparative Law 171.

214  Eliza Varney, ‘Convention on the Rights of Persons with Disabilities: Ensuring Full and Equal Access to Information’ in Yvonne Donders and Tarlach McGonagle (eds), The United Nations and Freedom of Expression and Information: Critical Perspectives (CUP 2015).

215  SCRPD (n 19) Working Group 5 to 16 January 2004.

216  Anna-Miria Muhlke, ‘The Right to Language and Linguistic Development: Deafness from a Human Rights Perspective’ (2000) 40 Virginia Journal of International Law 705.

217  ibid 761.

218  ibid 713.

219  IDA CRPD Forum (n 56) 32.

220  Art 3(d) and (h) CRPD; see Ball (n 157) 782.

221  IDA CRPD Forum (n 56) 33.

222  Art 2 CRPD.

223  IDA CRPD Forum (n 56) 32.

224  Tom Humphries et al, ‘The Right to Language’ (2013) 41 The Journal of Law, Medicine and Ethics 872.

225  ibid 880.

226  Muhlke (n 216) 759.

227  Gybels (n 87).

228  Art 4(3) CRPD.

229  Lawson (n 16) 618.

230  Dobransky and Hargittai (n 5).